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Social Charter - Aoife Nolan


Charles Amponsah: The European Committee of Social Rights has released its conclusions on recent reports given to it by 37 of the Council of Europe’s 47 member states, regarding children, families and migrants. To discuss the conclusions is Aoife Nolan, Professor of International Human Rights Law at the University of Nottingham’s School of Law in the United Kingdom, and she’s also a member of the Committee of Social Rights. Aoife, if I could ask you, regarding the rights of children, what stands out to you as the greatest area of concern?

Aoife Nolan: When it comes to child rights, unfortunately, as will become clear from the conclusions, I myself, together with the rest of the committee, have a wide range of concerns with regards to the extent to which children’s rights are being given effect to by the states that have volunteered to be bound by the European Social Charter. The rights that children have under the Charter are very wide-ranging. We see, for instance, protections accorded to children in the context of child labour; we see special protection for children from physical and moral dangers, for instance sexual or economic exploitation and then we also see a number of different obligations on states when it comes to the right of children to social, legal and economic protection. So, for instance, we see states being asked to report on the efforts that they have made with regards to say the rights of children in public care, the rights of particularly vulnerable groups of children to assistance. We see states providing us with information and are making findings of non-conformity about how children are dealt with in the context of the juvenile justice system. All of this is framed by the child rights provisions under the Charter but what’s striking is that unfortunately, state performance with regards to all of those provisions raises serious questions.

CA: Going back to child poverty. The committee has asked member states to provide more information on child poverty. How concerned is the committee on that particular aspect?

AN: So, for many years, the committee has looked at different aspects of child poverty through different parts of the Charter so, say the right to housing, the right to social and medical assistance, the right to protection for the family and indeed, we have this particular provision which we’re not looking at this cycle but have looked at in other cycles of the right to protection, poverty and social exclusion. I think it’s very striking that the committee has decided to add a specific question in the context of the child’s right to social and legal and economic protection: A question asking states to provide information on measures taken to address child poverty. I think that gives a strong sense of where the committee feels there’s a need for a more unified approach, maybe a stronger linkage or stronger appreciation on the part of states that child poverty very much is a child rights issue and certainly, those would be the messages that I think the committee would be trying to get across with this new question that states will have to answer specifically in the context of providing information on children’s rights in the future.

CA: The reports that the member states submitted to the committee for their conclusions to be drawn-up; they come at a time of great migration to Europe. My understanding is that the reports were sent to the committee between 2014 and 2017 and in that three year period, we’ve seen a huge growth in the number of migrants, refugees and others to Europe. How big a worry is the statelessness of children and indeed unaccompanied or irregular minors. How big an issue is that?

AN: When it comes to the question of migration or the movement of children, we have very serious concerns about the protection of children with different migration statuses; asylum-seeking children and particularly of course, unaccompanied minor children who are particularly vulnerable to exploitation by state authorities but also by others that they come across in the context of the situations in which they find themselves. We asked states for information about the measures they take to provide special assistance to unaccompanied minor children; more broadly, we ask states to provide us with information about the efforts made to secure the right to education for children with an irregular migration status, something which is particularly important, when you bear in mind the central role education plays when it comes to integration of children within particular societies but also in terms of supporting the development of children on an individual level. One of the things that came back again and again and again, unfortunately, in the context of states that currently have a significant number people in various stages of migration or seeking asylum on their territory, was the issue of the conditions in which families were kept and the conditions which children were kept, both with their families and separately, we see the committee, for instance, making a finding of non-conformity with regard to Greece, due to the inadequate and unsafe accommodation that many unaccompanied minors find themselves in. We see concerns being raised and another non-conformity with regards to Hungary and the position of unaccompanied children in the context of so-called transit zones where they are exposed to particular risk without adequate safeguard. So, this is a real area and it’s a pressing area because as we can see when we have situations like the war in Syria and other events that drive travel of people from one area of the world to the other, this is simply not going to be a problem that’s going away. States will need to learn to accommodate it. What’s striking as well in the work that we’ve done is that it is clear that some of the states that have received the greatest number of arrivals have made the greatest efforts. It is not simply a case of the committee turning round and saying that: ‘we want you to be absolutely perfect, we need you to provide everything at once.’ We have been very clear where states, for instance Turkey in the context of education, have made significant efforts with regards to securing the rights of children on the move or who have arrived in a state.

CA: And it’s not just social issues that the committee looks at, is it. You also have a role in examining criminal justice issues. What was a cause for concern here with some member states in particular?

AN: So you’re right. We don’t look just at social policy issues. We also, in the scope of the child’s right to legal, social and economic protection take a look at the situation of children in public care, children in juvenile justice. We have had some very worrying information with regards to that. For instance, we see that a number of states allow for very long sentences for children who’ve committed offences as minors. We see issues around solitary confinement, confinement with adults in some situations. We also see, in the case of the UK, the committee was extremely concerned amid a finding of non-conformity on the basis of the use of pain-inducing restraints, in the context of juvenile justice institutions so a range of different issues there across the different countries that we’ve looked at.

CA: Now, on the upside, there are plenty of examples, aren’t there, of member states where they’re actually meeting the provisions of the European Social Charter. So would you say then that countries are getting social rights right?

AN: Absolutely. There are some fantastically positive developments, okay. During the reference period, and by that I mean the period we’ve covered in terms of state performance, we saw a number of countries taking the steps necessary to prohibit corporal punishment of children in all settings and that’s a really important development. So that’s one positive example. Another example; for instance, you see countries like Estonia increasing child benefit which is a direct impact of children’s enjoyment of their social rights and their right to freedom from poverty and social exclusion which is also protected under the Charter. Another area in which we see positive development, interestingly, is child poverty where, for instance in Iceland the development of a really innovative mechanism called Welfare Watch which seems to have fantastic potential when it comes to addressing poverty issues in the context of economic crisis and beyond, including child poverty. So, it certainly isn’t all bad news.

CA: More than half of the members states who submitted reports were deemed to be broadly in conformity with the European Social Charter. So, that means that nearly half were not in conformity or there wasn’t enough information to compile a report of the situation. What can be done to help member states meet their obligations, specifically in terms of children’s rights, your area of concern?

AN: Well, first of all, I think there is obviously a role for the committee. We have to make it clear what information we’re looking for. We have to be consistent, in other words, we have to make those who draft state reports, we need to make sure that they’re in a position to do their job properly. However, ultimately, there has to be consistent engagement with the Charter by states rather than just looking to the Charter when it comes to putting together a report for the committee’s assessment. There has to be a consideration as to how children’s rights should shape policy and law in the relevant areas from the get-go. It shouldn’t always be reactive on the part of states - trying to post facto justify their actions in terms of child rights. It should be about building child rights into law and policy and practice from the very beginning.

CA: And finally, with the current global health crisis, is there a danger that social rights particularly for children, families and migrants - that they might not get the attention they deserve?

AN: I think that there is a very real risk that when we see this very real risk of crisis, when we see wide, sweeping measures being taken by states in order to, from the states’ perspective, in order to protect the general good or to protect public health etc, there is always a risk that vulnerable groups will be left behind. This includes children. For instance, it was only when we saw school closures begin to happen in some countries that we heard, oh how might that impact the right to education? When it comes to, for instance, where you have a situation in some countries where there’s reliance on food banks and these start to run out of stock because people are panic-buying, then suddenly there’s a right to food being talked about. We see situations such as where does one manage to secure self-isolation for people who are homeless, who don’t have access to housing at the best of times and are now being turned away from shelters if they have symptoms. So I think that certainly, in the coming years, when the committee assesses states responses to COVID-19, from the perspective of the Charter. For instance, we’ve spoken about children’s rights but obviously there’s the right to protection of health and a whole lot of other rights provisions that are relevant, it will be very interesting to see how well states have done. Have they taken social rights concerns into account or have they simply pushed ahead on an ad hoc, case-by-case basis when the problems have been pointed out to them?

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